UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MORGAN’S FERRY PRODUCTIONS, LLC, 

a California Limited Liability

Company,

Plaintiff-Appellant,

v.

ALICIA RUDD, an individual; RUDD  No. 00-1731

DOGS, INCORPORATED, a corporation,

Defendants-Appellees,

and

DOES 1-10, inclusive,

Defendants. 

Appeal from the United States District Court

for the Eastern District of North Carolina, at Wilmington.

W. Earl Britt, Senior District Judge.

(CA-99-38-7-BR)

Submitted: May 31, 2001

Decided: September 7, 2001

Before WILKINS and NIEMEYER, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Marc Zwerling, Portland, Oregon; Steven Wolfe Thompson, WOLFE

THOMPSON, L.L.C., Las Vegas, Nevada, for Appellant. Roy C.
Bain, BAIN & RODZIK, P.C., Wilmington, North Carolina, for

Appellees.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Morgan’s Ferry Productions appeals the district court’s grant of

Defendant Rudd’s motion for judgment as a matter of law at the close

of Plaintiff’s evidence. Finding no error in the district court’s ruling,

we affirm. 

Morgan’s Ferry hired Rudd to provide a mule to be used in production of the movie, "Morgan’s Ferry," and to be the wrangler, or handler, of the mule while it was participating in the movie. As a result

of problems with the mule and delays allegedly resulting from those

problems, Morgan’s Ferry sued Rudd for breach of contract, fraud,

and negligent misrepresentation. At the close of Morgan’s Ferry’s

evidence, the district court granted Rudd’s motion for judgment as a

matter of law and dismissed the case. 

A motion for judgment as a matter of law should be granted if the

district court determines that the nonmoving party "has been fully

heard . . . and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party." Fed. R. Civ. P. 50(a)(1); Brown

v. CSX Transp., Inc., 18 F.3d 245, 248 (4th Cir. 1994). Judgment as

a matter of law is only appropriate if, viewing the evidence in the

light most favorable to the nonmoving party, the court concludes that

"‘a reasonable trier of fact could draw only one conclusion from the

evidence.’" Brown, 18 F.3d at 248. The court should draw reasonable

inferences for the nonmoving party, but may not indulge in sheer

speculation. Gibson v. Old Town Trolley Tours of Washington, D.C.,

Inc., 160 F.3d 177, 181 (4th Cir. 1998). A district court sitting in

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diversity applies the federal standard in ruling on a motion for judgment as a matter of law. DeMaine v. Bank One, Akron, N.A., 904 F.2d

219, 220 (4th Cir. 1990). Such a motion should be granted if plaintiff

has not produced substantial evidence to support his claim. Id. This

court reviews the grant or denial of such a motion de novo, with the

evidence viewed in the light most favorable to the nonmoving party.

Chaudhry v. Gallerizzo, 174 F.3d 394, 404-05 (4th Cir. 1999). 

Under North Carolina law, a breach of contract claim must allege

that a valid contract existed between the parties, state that defendant

breached the terms thereof, explain the facts constituting the breach,

and specify the damages resulting from such breach. Claggett v. Wake

Forest Univ., 486 S.E.2d 443, 446 (N.C. App. 1997). In its complaint,

Morgan’s Ferry alleged that it "hired Rudd to provide a mule which

[Rudd] owned and which was trained to sit on its haunches and to

provide ‘mule wrangler’ services in connection with the mule’s

scenes in the [p]icture." The complaint further alleged that Rudd

breached these obligations "in that [Rudd] did not actually own the

mule, the mule was not trained to sit on its haunches, and [Rudd] did

not know how to control the mule." There was no written contract

between Morgan’s Ferry and Rudd. Although Rudd received a copy

of the script prior to the beginning of shooting, the script was primarily a general description of the scenes that provided virtually no detail

of the actions expected of the mule. The evidence at trial revealed that

the only firm condition of Rudd’s employment was that the mule pull

a cart that could hold five adults. The ability of the mule to sit on its

haunches was desired by Morgan’s Ferry, but was not a condition of

employment, as Rudd only agreed to attempt to train the mule to perform this action. Ownership of the mule was likewise not a term of

the agreement, nor did Rudd state that she owned the mule. Rather,

she stated that she "had" a mule. Finally, the agreement did not

explicitly define Rudd’s duties as a "wrangler." Even accepting the

argument of Morgan’s Ferry that the doctrine of implication should

be applied to supply missing terms of the agreement, the Plaintiff’s

evidence of Rudd’s failure to properly handle the mule demonstrated

at most isolated incidents of delay or difficulty in persuading the mule

to perform as scripted that occurred in the context of numerous other

delays in filming. 

Morgan’s Ferry alleged that Rudd fraudulently stated that she

owned a mule, that the mule was trained to sit on its haunches, that

MORGAN’S FERRY PRODUCTIONS v. RUDD 3
she was a mule wrangler and was trained and experienced in handling

the mule, and that she would provide all services for a flat fee of

$2500. In the alternative, Morgan’s Ferry alleged that Rudd’s representations amounted to the tort of negligent misrepresentation. Under

North Carolina law, the "essential elements of fraud are: (1) [f]alse

representation or concealment of a material fact, (2) reasonably calculated to deceive, (3) made with intent to deceive, (4) which does in

fact deceive, (5) resulting in damage to the injured party." Rowan

County Bd. of Educ. v. United States Gypsum Co., 418 S.E.2d 648,

658 (N.C. 1992) (internal quotation marks omitted). All averments of

fraud and circumstances constituting fraud must be stated with particularity. Fed. R. Civ. P. 9(b); see also Rowan County, 418 S.E.2d at

659 ("There is a requirement of specificity as to the element of a representation made by the alleged defrauder. The representation must be

definite and specific."). The tort of negligent misrepresentation occurs

when a party justifiably relies to his detriment on information supplied in the course of business without reasonable care by one who

owed the relying party a duty of care, and suffers harm as a result.

Helms v. Holland, 478 S.E.2d 513, 517 (N.C. App. 1996). 

During the formation of the agreement between Morgan’s Ferry

and Rudd, two employees of Morgan’s Ferry discussed the terms and

conditions of employment with Rudd. These witnesses testified that

at no time did Rudd affirmatively state that she owned the mule, but

merely stated she "had" a mule. Further, Rudd only agreed to try to

train the mule to sit on its haunches. At most, the testimony established that Rudd stated that she believed she could train the mule to

perform this action before shooting began. Further, neither employee

testified that Rudd told them she was a mule wrangler. Rudd apparently presented her resume that indicated previous experience working with mules and a variety of animals, but the record is devoid of

any evidence of an affirmative representation by Rudd as alleged by

Morgan’s Ferry. With regard to the fee for her services, the production manager for Morgan’s Ferry explained that the $2500 fee was

based on a five day shooting schedule because of uncertainty as to

how many days of shooting would be needed to capture all the scenes

involving the mule. When additional days became necessary, Rudd

required additional payment for her time and the use of the mule, at

a rate of $450 per day. There was no evidence that Rudd agreed to

supply an unlimited number of days of service for $2500. We agree

4 MORGAN’S FERRY PRODUCTIONS v. RUDD
with the district court’s conclusion that "there’s no evidence to support a fraud claim or negligent misrepresentation claim." 

Finally, our review of the record convinces us that Morgan’s

Ferry’s evidence of damages, an element of each cause of action, was

insufficient. North Carolina law does not allow an award of damages

based upon speculation or conjecture. See Weyerhaeuser Co. v. Godwin Bldg. Supply Co., 234 S.E.2d 605, 607 (N.C. 1977). 

Accordingly, we affirm the judgment of the district court. We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED

MORGAN’S FERRY PRODUCTIONS v. RUDD 5